United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 6, 1998 Decided January 15, 1999
No. 97-3183
John W. Hinckley, Jr.,
Appellant
v.
United States of America,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 81cr00306-01)
Barry Wm. Levine argued the cause for appellant. With
him on the briefs was Adam Proujansky. John T. Kotelly
entered an appearance.
Thomas C. Black, Assistant United States Attorney, ar-
gued the cause for appellee. With him on the brief were
Wilma A. Lewis, United States Attorney, John R. Fisher,
Robert R. Chapman and Thomas E. Zeno, Assistant United
States Attorneys. Thomas J. Tourish, Jr. and Helen M.
Bollwerk, Assistant United States Attorneys, entered appear-
ances.
John M. Ferren, Corporation Counsel, Charles L. Reischel
and Janet L. Maher, Deputy Corporation Counsels, were on
the brief for amicus curiae District of Columbia.
Before: Wald, Williams and Henderson, Circuit Judges.
Opinion for the Court filed by Circuit Judge Wald.
Dissenting Opinion filed by Circuit Judge Henderson.
Wald, Circuit Judge: In early December 1997, St. Eliza-
beths Hospital ("Hospital") in Washington, D.C., filed a letter
notifying the district court that it had approved a supervised
six-hour outing for John W. Hinckley, Jr., an insanity acquit-
tee, to eat a holiday dinner with his parents and a companion
on December 29, 1997, in a designated private home. The
Hospital planned to transport Hinckley in a hospital van, in
the custody of two Hospital employees, to the private home,
where he would remain in the line of sight of a Hospital
escort at all times.1 The United States Attorney opposed this
plan and asked the district court to hold a hearing under D.C.
Code s 24-301(e), which requires a hearing when the Hospi-
tal proposes the "conditional release" of an insanity acquittee
and the United States objects to it. Hinckley argued that the
outing was not a "conditional release" under the statute and
that the district court had no jurisdiction to approve or reject
the supervised visit.2 The district court ruled that the visit
was a "conditional release" and held the statutorily prescribed
de novo hearing under section 301(e) to determine whether
Hinckley's condition "warrants his conditional release ...
under such conditions as the court shall see fit." D.C. Code
__________
1 The details of this plan were submitted to the court and appear
in the sealed record.
2 The Hospital was, however, obligated to notify the district court
and the United States Attorney of Hinckley's outing under the
terms of a stipulation entered into by the Hospital and the govern-
ment in 1987, discussed below. See Joint Appendix ("J.A.") at 77.
s 301(e). On December 15, 1997, the district court found
Hinckley not eligible for conditional release.
The sole question we decide on this appeal is whether the
proposed six-hour outing in the company of Hospital employ-
ees is in fact a "conditional release" within the meaning of
section 301(e) over which the district court has jurisdiction to
approve or reject.3 We conclude that it is not and according-
ly vacate the judgment of the district court.
I.
Hinckley attempted to assassinate then-President Ronald
Reagan on March 30, 1981, in the driveway of the Washing-
ton Hilton Hotel. He shot and wounded the President, as
well as Presidential Press Secretary James Brady, Secret
Service Agent Timothy McCarthy, and Metropolitan Police
Officer Thomas Delahanty. During his criminal trial, Hinck-
ley presented evidence that he suffered from a mental disease
__________
3 We hold that we do not have jurisdiction to review the propriety
of Hinckley's proposed outing under the relevant District of Colum-
bia statute, and thus we do not consider the potential use of the
highly deferential standard of review applicable to the Hospital's
treatment decisions announced in Tribby v. Cameron, 379 F.2d 104
(D.C. Cir. 1967), and advocated by our dissenting colleague. Since
we are not presented with the issue, we express no opinion on
whether the United States might have standing as an aggrieved
party under the Administrative Procedures Act (or any other
provision of law in the same genus) to challenge the Hospital's
therapeutic decisions regarding Hinckley.
Hinckley also argues that the district court judge should be
removed from this case pursuant to 28 U.S.C. s 144 because her
decisionmaking has been tainted by information regarding Hinck-
ley's condition that is more than 10 years old. However, a district
court exercising proper jurisdiction under section 301(e) may take
into account a patient's past record, and in any event, nothing in the
record on appeal demonstrates that this judge has been unable to
rule fairly or has otherwise compromised the appearance of justice.
See United States v. Wolff, 127 F.3d 84 (D.C. Cir. 1997). Therefore,
we deny Hinckley's request to transfer his case to another judge.
at the time of the attack, and a jury subsequently found him
not guilty by reason of insanity. He was committed in 1982
to St. Elizabeths Hospital, where he has remained in resi-
dence ever since. The District of Columbia statute under
which Hinckley was committed, D.C. Code s 24-301, estab-
lishes the circumstances in which insanity acquittees can be
"unconditionally" or "conditionally" released from the hospi-
tal. Specifically, section 301(e) provides that the district
court in which a patient was tried and committed must
approve or reject the Hospital's certified recommendation
that the patient be "conditionally released under supervision."
The court can hold a hearing on the matter sua sponte if it so
chooses, but it must hold a hearing if the government prose-
cutor objects to the proposal.
In 1987, the Hospital filed notice with the district court
under section 301(e) that it proposed to grant Hinckley a
conditional release, in the form of an outing off Hospital
grounds unaccompanied by Hospital personnel, as part of his
continuing therapy. The Hospital subsequently withdrew
this plan when a court-ordered search of Hinckley's room
turned up evidence which Hinckley had apparently concealed
from his therapists, representing, in the opinion of Hospital
officials, symptoms of a continuing and potentially dangerous
illness.4 After the Hospital withdrew its 1987 notification, the
Hospital and the United States Attorney entered into a
"Stipulation," whereby the Hospital agreed to provide two
weeks' written notice to the district court, the United States
Attorney, and Hinckley's lawyer any time the Hospital pro-
posed to release Hinckley "from the grounds of St. Elizabeths
Hospital accompanied by Hospital personnel." J.A. at 77. In
1988, the Hospital notified the district court, pursuant to the
1987 Stipulation, that it planned to grant Hinckley a half-day
off-campus visit in the custody of Hospital staff. This was
also withdrawn after the Hospital and the United States
__________
4 This evidence consisted of pictures of Jodie Foster, letters
detailing his plans for a "cult" or "family," and correspondence
praising Hitler and Charles Manson. See United States v. Hinck-
ley, 725 F. Supp. 616, 622 & n.13 (D.D.C. 1989).
Attorney's office discovered more evidence that his clinical
status had improved less than the Hospital originally thought.
J.A. at 309-11.
Not until December of 1997 did the Hospital again propose
to allow Hinckley off Hospital grounds--again, only for a
brief social visit with his parents (and a companion) in the
custody of Hospital staff. St. Elizabeths' Hospital Review
Board, which issues conditional release certifications under
section 301(e), decided that such a supervised visit was the
next appropriate step in Hinckley's therapy because he has
lived in a minimum security ward at the Hospital since 1992
and travels the Hospital grounds without escort.5 This visit
requires a "B-City" pass because it is a "Class B" privilege,
see footnote 5, involving excursions off Hospital grounds
under Hospital supervision. See Final NIMH Report, at 87.
In compliance with the Stipulation, on December 2, 1997, the
Review Board submitted a letter to the court and the United
States Attorney's office notifying them that Hinckley would
be allowed to have a holiday visit on December 29, 1997, off
Hospital grounds, with family members and his long-time
girlfriend in a private home for up to six hours accompanied
at all times by Hospital staff.
The United States requested a hearing, after which the
district court barred the Hospital's planned visit, holding that
the outing was a conditional release under section 301(e) and
concluding that "the Court cannot find by a preponderance of
the evidence that Mr. Hinckley will not be a danger to himself
or others should he be permitted to cross the boundary of St.
Elizabeths Hospital under the proposal before the Court,
__________
5 The Hospital classifies its forensic patients in four groups--A,
B, C, and D. Hinckley is presently a "Class D" patient. Class D
patients "may be granted various levels of unaccompanied status on
the Hospital grounds only. In practice, such patients can be by
themselves (but only on the grounds of the Hospital) for between 2-
8 hours a day." Final Report of the National Institute of Mental
Health (NIMH) Ad Hoc Forensic Advisory Panel, 12 Mental &
Physical Disability L. Rptr. 77, 87 (1988) (hereinafter "Final
NIMH Report").
even in the company of Hospital staff." United States v.
Hinckley, 984 F. Supp. 35, 37 (D.D.C. 1997) (Hinckley II).6
II.
The government7 argues that this appeal is now moot
because the proposed visit was scheduled for December 29,
1997, a date long since passed so that this court could grant
no meaningful relief. We conclude, however, that the "B-
__________
6 The district court relied primarily upon evidence and psychiatric
testimony submitted in June 1997, when the court heard and denied
a motion for conditional release brought by Hinckley under section
301(k), see D.C. Code s 24-301(k), which allows patients to bring
habeas-type proceedings challenging the terms of their commit-
ment. That hearing came about when, in 1996, Hinckley's treat-
ment team recommended an unescorted 12-hour off-campus visit
with his family once a month. The Hospital Review Board denied
this recommendation, based in large part upon Hinckley's unwel-
come attention in 1995-96 to a Hospital pharmacist who had report-
ed that Hinckley seemed preoccupied with her to an unhealthy
degree. See United States v. Hinckley, 967 F. Supp. 557 (D.D.C.
1997) (Hinckley I). Hinckley filed a section 301(k) motion and
argued that the decision of the treatment team should be reinstated.
After the June 1997 hearing, the court denied the motion for a
conditional release but did not address Hinckley's eligibility for an
off-campus visit under Hospital supervision.
While the parties agree that the evidence of Hinckley's mental
status presented in June 1997 would certainly be relevant were
judicial review of the Hospital's decision available, we note, in light
of the dissent's emphasis on this evidence, that it was presented in a
very different context. Not only did the June 1997 hearing address
only Hinckley's own request that he be allowed off-campus without
supervision, but also at that hearing the Hospital Review Board
opposed the plan for Hinckley's conditional release. In this case,
the Hospital Review Board approved of and requested the issuance
of a "B-City" pass as part of Hinckley's ongoing therapy.
7 The term "government" in this opinion refers to the United
States Attorney. The District of Columbia has filed a brief as
amicus curiae on behalf of St. Elizabeths, urging that a "B-City"
pass is not a conditional release under section 301(e).
City" pass at issue here falls within the exception to the
mootness doctrine for cases that are "capable of repetition,
yet evading review." Murphy v. Hunt, 455 U.S. 478, 482
(1982) (citation and quotation omitted).
In so concluding we rely on this court's decision in Friend
v. United States, 388 F.2d 579 (D.C. Cir. 1967), in which we
held that a revocation of a conditional release, which had been
appealed, was not rendered moot when another conditional
release was issued during the appeal. See id. at 581. Since
the record showed that there would likely be only brief
periods of time in which a revocation would be in effect for
this patient before another conditional release was issued, we
found that the challenged revocation order was so short in
duration as to evade review. See id. The District of Colum-
bia Court of Appeals has applied Friend to a case identical to
this one. See Shuler v. United States, 422 A.2d 996, 997
(D.C. 1980) (court's review of a holiday conditional release
after the holiday has passed is not blocked because " '[t]he
issue as to the proper construction of section 301(e) is con-
tinuing and of public importance, and review is not precluded
by mootness' "), quoting Friend, supra.
Applying the capable of repetition but evading review
standard to this case, if there is "a reasonable likelihood that
[Hinckley] will again suffer the deprivation ... that gave rise
to this suit," Honig v. Doe, 484 U.S. 305, 318 (1988), his case
is capable of repetition. Hospital doctors have indicated that
Hinckley's psychotic disorder and major depression are in
remission, but that he still suffers from narcissistic personali-
ty disorder. See J.A. at 249 (1996 Clinical Record). This
fact, combined with the nature and notoriety of his assassina-
tion attempt, make it abundantly clear that Hinckley faces a
lengthy stay at St. Elizabeths Hospital. We can safely
conclude as well, based on the parties' representations in
briefs and at argument, that Hinckley's clinical status has not
changed since the summer of 1996 and, that his doctors are
likely to continue recommending "B-City" passes as the next
appropriate step in his therapy. See Gannett Co. v. De
Pasquale, 443 U.S. 368, 377 (1979) (publisher of two New
York newspapers is reasonably expected to be subject to
closure orders similar to the one the newspaper is challenging
because of the nature of its business); Jenkins v. Squillacote,
935 F.2d 303 (D.C. Cir. 1991) (7-year-old disabled public
school student reasonably likely again to face placement in
another school and lodge an objection). Indeed, if that is
their professional opinion, they are bound to do so. The
government admitted as much in its brief. See Appellee's
Brief at 28. Thus, the proposed issuance of a "B-City" pass
to Hinckley is eminently capable of repetition.
The normal process for planning a "B-City" outing is also
of such short duration that it could well evade review. The
1987 Stipulation requires the Hospital to provide only two
weeks' notice before a scheduled outing--hardly enough time
under normal court scheduling for fullscale judicial review
and possible approval of the plan. The government argues
that the Hospital could eliminate the risk that future visits
would evade review by proposing an outing without any
specific time constraints and agreeing that if the outing is
approved it would be scheduled for two weeks after a final
court ruling. In response, counsel for the Hospital said at
oral argument that the Hospital does occasionally draw up
long-term plans, for a period of a year or more, in which
patients are granted periodic "B-City" outings, but did not
indicate whether such a long-term plan would be feasible for
Hinckley. The record before us and the tortured legal histo-
ry surrounding his commitment does not suggest that the
Hospital would approve open-ended visits for Hinckley with-
out time constraints or particularized approval by the Hospi-
tal Review Board. The government itself argues that the
terms under which Hinckley should be able to leave the
Hospital grounds are "highly fact specific," Appellee's Brief at
28, depending on Hinckley's current condition and the details
of the outing that is proposed. In fact, prior to the Hospital's
approval of this supervised visit, the Hospital rejected a more
extensive open-ended plan that would have allowed Hinckley
to visit with his parents, without the presence of Hospital
staff, for 12 hours at a time once every month. In similar
circumstances, we have advocated a commonsense reading of
the record to decide whether the issue before us evades
review, concluding that it may do so, even where there is no
assurance that time constraints will always preclude review.
See, e.g., Christian Knights of the Ku Klux Klan Invisible
Empire, Inc. v. District of Columbia, 972 F.2d 365 (D.C. Cir.
1992) (city decision regarding a permit for a march evades
review when the decision is likely to be issued 15 days before
the event and safety concerns are likely to arise even later);
Washington Post v. Robinson, 935 F.2d 282 (D.C. Cir. 1991)
(sealing of a plea agreement evades review in part because of
importance of public access to court proceedings, even though
a sealing order might stay in effect for a long period).
Finally, "both Supreme Court and circuit precedent hold
that orders of less than two years' duration ordinarily evade
review." Burlington N. R.R. Co. v. STB, 75 F.3d 685, 690
(D.C. Cir. 1986), citing Southern Pac. Terminal Co. v. ICC,
219 U.S. 498, at 514-16 (1911); In re Reporters Comm. for
Freedom of the Press, 773 F.2d 1325, 1329 (D.C. Cir. 1985).
Even if the Hospital were to fashion a long-term "B-City"
plan for Hinckley, the plan is not likely to cover a two-year
period nor to be submitted two years in advance.8 Accord-
ingly, we find that this case is "capable of repetition yet
evading review."
III.
We turn then to the crux of the appeal, the statutory
question of whether section 301(e) applies to off-grounds
therapeutically approved visits into the community in the
custody of Hospital personnel. Hinckley argues that anyone
"conditionally released under supervision" in section 301(e) so
as to require court approval must be a person who is released
from the custody of the Hospital; and since Hinckley is to
remain in the custody of the Hospital for this visit, he will not
be conditionally released and no judicial review or approval is
required under the statute. The government contends that
__________
8 The government argues that Hinckley could ask for expedited
review, but we have repeatedly held that we will not consider the
possibility of expedited review in determining mootness. See Rob-
inson, 935 F.2d at 287 n.6.
the phrase "conditionally released" under section 301(e) re-
fers to release from the Hospital's boundaries and thus
applies to any visit off-grounds. One thing seems clear: the
term "conditionally released under supervision," standing
alone, does not yield a "plain meaning" that must be "en-
force[d] [ ] according to its terms," Caminetti v. United
States, 242 U.S. 470, 485 (1917), and we must resort to
legislative history and statutory context to divine its meaning.
A.Statutory Construction
Section 24-301 of the District of Columbia Code governs
the commitment and release of criminal defendants who are
found to be insane. In particular instances, it vests supervi-
sory powers in the judiciary over patients' ingress to and
egress from St. Elizabeths. As the District of Columbia
Court of Appeals has observed, "[T]his jurisdiction has con-
cluded legislatively that the judiciary is best suited to per-
forming 'the value-weighing function of balancing the unpre-
dictable risks to individual liberty and public safety' posed by
the release decision." DeVeau v. United States, 483 A.2d 307,
311 (D.C. 1984) (quoting Joseph Goldstein & Jay Katz, Dan-
gerousness and Mental Illness: Some Observations on the
Decision to Release Persons Acquitted by Reason of Insani-
ty, 70 Yale L.J. 225, 237 (1960)). Sections 301(a) and (b)
address the judiciary's role in determining a defendant's
competency to stand trial. See D.C. Code s 24-301(a)-(b).
Section 301(c) provides that when a jury finds a defendant not
guilty but insane, it must say so specifically. See id. s 301(c).
We focus on the next two sections of the statute in determin-
ing the meaning of "conditional release."9
Section 301(d)(1) provides for the automatic commitment to
the Hospital of a person acquitted on a verdict of insanity.
See id. s 301(d)(1). Subsection 301(d)(2)(A) further states:
"A person confined pursuant to paragraph (1) of this subsec-
tion shall have a hearing, unless waived, within 50 days of his
confinement to determine whether he is entitled to release
__________
9 Although it is a fairly obvious point, we note that the parties
here do not contest the meaning of "conditions" or "conditional";
the debate instead focuses on what it means to be "released."
from custody." Id. s 301(d)(2)(A) (emphasis added). At the
hearing, "[t]he person confined shall have the burden of
proof. If the court finds by a preponderance of the evidence
that the person confined is entitled to release from custody,
either conditional or unconditional, the court shall enter
such order as may appear appropriate." Id. s 301(d)(2)(B)
(emphasis added). The words "confined," "confinement,"
"custody," and "release" are nowhere defined. We can safely
suppose, though, that "confinement" is roughly the opposite
of "release from custody" because of the way the terms are
juxtaposed in the statute--e.g., a "person confined is entitled
to release from custody." Under this statute, "custody" is
that from which a "confined" person is released. It follows
that if we place "release" and "confinement" at different ends
of the spectrum, with release denoting freedom and confine-
ment denoting no freedom, then "custody" should be placed
on the spectrum much nearer to "confinement" than to "re-
lease."
Section 301(e) sets forth the procedure for granting a
patient committed under this statute an unconditional or
conditional release, and it presents the same juxtaposition
between "confined" and "released." It begins: "Where any
person has been confined in a hospital for the mentally ill
pursuant to subsection (d) of this section," the Hospital
superintendent may determine that the person is "entitled to
his unconditional release from the hospital." Id. s 301(e)
(emphasis added). For conditional releases, section 301(e)
provides, in relevant part:
Where, in the judgment of [the Hospital] superintendent
..., a person confined under subsection (d) of this
section is not in such condition as to warrant his uncondi-
tional release, but is in a condition to be conditionally
released under supervision, and such certificate is filed
[with the clerk of the court in which the person was
tried] and served [on the United States Attorney], such
certificate shall be sufficient to authorize the court to
order the release of such person under such conditions as
the court shall see fit at the expiration of 15 days from
the time such certificate is filed and served pursuant to
this section; provided, that the provisions as to hearing
prior to unconditional release shall also apply to condi-
tional releases, and, if after a hearing and weighing the
evidence, the court shall find that the condition of such
person warrants his conditional release, the court shall
order his release under such conditions as the court shall
see fit, or, if the court does not so find, the court shall
order such person returned to such hospital.
Id. s 301(e) (emphasis added). The hearing provisions made
applicable to conditional releases are as follows:
... the court in its discretion may, or upon objection of
the United States ... shall, after due notice, hold a
hearing at which evidence as to the mental condition of
the person so confined may be submitted, including the
testimony of 1 or more psychiatrists from said hospital.
Id. s 301(e). Finally, section 301(k) provides a habeas-type
mechanism for acquittees to challenge the terms of their
commitment: "A person in custody or conditionally released
from custody ... may move the court having jurisdiction to
order his release, to release him from custody, to change the
conditions of his release, or to grant other relief." Id.
s 301(k) (emphasis added). In sum, sections 301(e) and (k)
continue the usage of "release" as a counterpart to "custody"
and "confinement."
Assuming, as we do, that these terms are used consistently
throughout the text, cf. Atlantic Cleaner & Dyers, Inc. v.
United States, 286 U.S. 427, 433 (1932), quoted in United
States v. Thompson, 452 F.2d 1333, 1345 (D.C. Cir. 1971) (the
"natural presumption that identical words used in different
parts of the same act are intended to have the same meaning"
yields when "there is such variation in the connection in
which the words are used as reasonably to warrant the
conclusion that they were employed in different parts of the
act with different intent"), we surmise from the statute that a
person who is conditionally released under section 301(e) is no
longer confined nor in the Hospital's custody. We also
observe that Congress did not indicate the terms "custody,"
"confinement" and "release" are to be construed in other than
their ordinary sense, see Palestinian Information Office v.
Shultz, 853 F.2d 932, 937 (D.C. Cir. 1988), so we can derive
some guidance from the dictionary. To "confine" is "a: to
keep in narrow quarters: imprison" and "b: to prevent free
outward passage or motion of." Webster's Third New Int'l
Dictionary 476 (1976). "Custody" similarly betokens re-
straint but it is a more specific form of it: custody is defined
as "a: the act or duty of guarding and preserving." Id. at
559. It is clear, then, that one who is "released" under this
statute--"set free from restraint [or] confinement," id. at
1917--is no longer under the restraint of custody nor con-
fined in his movement.10
The cornerstone of our dissenting colleague's argument is
that under this plan, Hinckley will in fact be "released," i.e.,
__________
10 Although none of the parties argue here that "conditionally
released under supervision" in section 301(e) and "conditionally
released from custody" used in other parts of the statute mean
different things, we note that the House Report accompanying
passage of the revised section 24-301 would in any case allay any
such fear: the report explains that in section 301(e), an acquittee is
"conditionally released under supervision" when he is released "to a
legal guardian or other person subject to such conditions as the
court may impose." See H. Rep. No. 84-892, at 17 (1955) (hereinaf-
ter "1955 House Report") (emphasis added). Thus, sections 301(e)
and (k) do not contradict each other, but rather dovetail. A patient
covered by the statute is conditionally released if he is released,
with conditions, from the Hospital's custody to the supervision of
another.
Moreover, section 301(k), added to section 24-301 in 1970 when
Congress adopted the District of Columbia Court Reform and
Criminal Procedure Act of 1970, Pub. L. No. 91-358, 84 Stat. 570,
specifically cross-references the remainder of the statute (it refers
who are "conditionally released from custody, pursuant to the
provisions of this section"). And there is no legislative history
otherwise discussing its choice of language, so there is nothing to
counteract the presumption that its terms should be read the same
way as the rest of the statute. See H.R. Rep. No. 91-907, at 73-74
(1970).
set or made free, when he travels in a Hospital van under the
constant supervision of Hospital staff for a six-hour visit. See
Dissent at 1. While asserting that "[i]t cannot be disputed
that if Hinckley is allowed the proposed visit he will be
freed," the dissent also concedes that Hinckley's so-called
freedom would come with "the stipulations that he return to
the Hospital the same day and that he be accompanied by
Hospital staff during the visit." Id. at 2. We candidly do not
see how such a visit under Hospital escort is tantamount to
being "set free" with "conditions." "Conditional" cannot mod-
ify "release" so as to obliterate the ordinary meaning of
"release" altogether. As is true of other patients allotted "B-
City" passes, Hinckley would at all times be confined to the
presence of Hospital personnel and subject to any restraint
they deemed necessary on his freedom of movement during
this outing; if anything he would be more restrained than he
currently is on Hospital grounds, where he moves freely
without escort. The mere fact that he is allowed to leave the
confines of the Hospital plant under such restraints does not
mean in any legal or practical sense that he has been released
from "custody" and "confinement."
B.Case Law Addressing Section 301 and "Conditional Re-
lease"
United States v. Hough, 271 F.2d 458 (D.C. Cir. 1959), the
only case that addresses the meaning of "conditional release"
under section 301, bolsters the point that "conditional release
from custody" or "confinement," as used variously throughout
the statute, means conditional release from Hospital guard or
restraint.
__________
The dissent, generally invoking the "plain meaning" rule of
statutory construction, argues that nothing in the text of the statute
indicates that "under supervision" in section 301(e) should be limit-
ed to the supervision of a party other than the Hospital. We
question whether a statute's "silence," Dissent at 2, on whether an
inherently vague term should be construed a certain way supports
application of the plain meaning rule. We also note that the
legislative history, cited above, casts serious doubt on the notion
that "conditionally released under supervision" means "conditionally
released under continuing Hospital supervision."
In Hough, this court answered the question of whether an
individual committed under section 301 could be permitted,
without judicial approval, to leave the Hospital grounds on his
own without a guard or attendant. We answered "no" and
held that such an off-grounds visit was a "conditional release"
under section 301(e). While cautioning that a person commit-
ted for treatment is not a "prisoner," we said:
It does not follow, however, that the hospital authorities
are free to allow such a patient to leave the hospital without
supervision.... [T]he statute makes one in appellant's
situation a member of "an exceptional class of people." It
provides, generally, that the District Court have a voice in
any termination of her confinement, whether unconditional
or conditional.
Although the statute does not speak of temporary leaves
from the hospital, its purpose, as we read it, is to assure
that members of the "exceptional class" to which appellant
belongs be kept under hospital restraint until the District
Court, in the exercise of a discretion, reviewable by this
Court, approves a relaxation of that restraint. We read
"conditional release" as used in the present statute to
include the kind of temporary freedom which has been
given this appellant.
Hough, 271 F.2d at 462 (citation omitted) (emphasis added).
Despite Hough's unequivocal reliance on "restraint" as the
touchstone for deciding whether a patient has been condition-
ally released, the government, citing dictum in another case,
United States v. Ecker, 543 F.2d 178 (D.C. Cir. 1976), asks us
to expand Hough to hold that an off-campus visit with two
Hospital escorts is also a "conditional release" under the
statute. In Ecker, we held that a district court reviewing the
Hospital's certificate for conditional release under section
301(e) must employ a de novo standard of review; we were
not presented, as we were in Hough, with the meaning of
conditional release. Although we referred to a patient's
"cross[ing] the hospital boundary" as the point at which a
court stops deferring to the Hospital's judgment, we also
quoted Hough's pronouncement that the presence of Hospital
restraint determines whether a patient has been conditionally
released. Id. at 186. Ecker thus represents no persuasive
authority at all for the principle that a patient has been
released from custody when he leaves the Hospital grounds
with a Hospital escort.
So, given that Hough stands only for the proposition--at
most--that a patient's unrestrained release into the community
is a conditional release, we conclude that prior case law,
together with the syntactical usage of "custody" and "confine-
ment" in the statute, compel the conclusion that a patient's
off-campus visit with Hospital escorts (a "B-City" pass) is not
a conditional release under section 301. This has certainly
been the uniform assumption of every court in the District of
Columbia--not to mention the government and the Hospital,
discussed more fully below--that has ever considered a pa-
tient's motion for conditional release, a Hospital's certification
of conditional release, or a revocation of conditional release.
See, e.g., Ecker, 543 F.2d at 181; United States v. McNeil,
434 F.2d 502, 505 (D.C. Cir. 1970) (Bazelon, J., concurring);
Friend, 388 F.2d at 579 (D.C. Cir. 1967); Darnell v. Camer-
on, 348 F.2d 64, 65 (D.C. Cir. 1965); Jackson v. United
States, 641 A.2d 454, 456 (D.C. 1994); DeVeau, 483 A.2d at
310 n.4; United States v. Charnizon, 232 A.2d 586, 587 (D.C.
1967). The Hough court also expressly recognized the differ-
ence which we reiterate here between conditional releases
and Hospital-accompanied off-campus excursions: it noted
that the district court could "require that [the patient] be
restricted to the hospital grounds, or, if outside the hospital
grounds, in the custody or company of a hospital attendant
until such a time as the court orders the conditional release
of [the patient]." Hough, 271 F.2d at 460 (emphasis added).
C.Legislative History of Section 301
The legislative history of section 301 adds weight to the
notion that a "confined" patient is "released from custody"
only when he is released from the Hospital's restraints or
guard. The 1955 House Report indicates that lawmakers
rewrote section 301 because under its predecessor, a person
found not guilty by reason of insanity and committed to a
mental hospital could be released solely on the basis of a
certificate from the hospital superintendent. See 1955 House
Report, at 13. Congress chose to place the District of
Columbia in the ranks of the states, roughly half at the time,
that required a court order to accomplish a release from a
mental institution. Id. "It is the opinion of the Committee
[ ] that once a person has been excused from his criminal act
or acts by reason of insanity he be not thereafter released
into society until it is reasonably certain that the person has
recovered his sanity and is no longer dangerous to himself or
others." Id. Thus, the public safety concerns that Congress
addressed by involving the judiciary in the release of the
criminally insane are implicated by the release of a patient
into society and out of Hospital custody, and it is at that point
where Hospital decisions end and court jurisdiction takes
hold. See also DeVeau, 483 A.2d at 311 (judicial review
under section 301(e) is to ensure that an acquittee "is well
enough to reenter the community on a conditional or uncondi-
tional basis").11
__________
11 Our dissenting colleague labels this history "irrelevant" be-
cause, in her view, it pertains only to court supervision of uncondi-
tonal releases and not conditional releases. That narrow a reading,
however, ignores the broader design of the statute, and the legisla-
tive history, which define, in a series of contexts, the various
junctures at which judicial supervision of the release of insanity
acquittees is necessary in order to safeguard the public--regardless
of whether the release is "conditional" or "unconditional." See 1955
House Report, at 13-14. Moreover, the section of the House
Report which we cite to show that Congress was motivated by the
public safety issues posed by an insanity acquittee's release into
society does specifically address conditional releases as well. The
Report says that the provision for court-supervised conditional
release was intended to address the same public safety concerns
posed by unconditional reentry into society, while allowing "psychi-
atric aftercare supervision" for those who might not otherwise be
eligible for unconditional release. See id. (court-supervised condi-
tional release would "[g]ive to the public an increased feeling of
security").
D. Past Practice and Procedure
Indeed, a demarcation line between a Hospital escort and
supervision by some other third party in the community has
signaled the point at which the requirements of conditional
release come into play since conditional releases first became
available for insanity acquittees in 1955. We disagree with
our dissenting colleague that 43 years of unchallenged past
practice is irrelevant in that respect. The very existence of
the 1987 Stipulation--whose sole purpose is to require the
Hospital to give notice when Hinckley will be off Hospital
grounds--suggests that the government understood then that
the Hospital would not otherwise have to give such notice for
Hospital-accompanied visits. Moreover, after the Hospital
was criticized in 1986 for allowing Hinckley to leave the
grounds for a day with a Hospital escort, Congress in 1988
amended the Federal insanity defense law specifically to do
what the District of Columbia law does not: to provide
prospectively12 for court supervision of all excursions by
Federal insanity acquittees off Hospital grounds. See 18
U.S.C. s 4243(h); see also 133 Cong. Rec. 16905 (statement of
Rep. Gekas) (Hinckley's supervised outing "is when we first
discovered that ... decisions for furloughs or off campus
excursions ... from the hospital ... [are] subject only to the
approval of the hospital mechanism that is in place").
Since October 1, 1996, Hospital staff have made 451 trips to
D.C. General Hospital with eligible medium and maximum
security patients on "B-City" privileges, as well as 56 other
community visits to attend wakes, funerals, or special medical
appointments at other facilities. See District of Columbia's
(D.C.) Brief at 10-11. In the same period of time, the
Hospital's Recreational Therapy Branch has taken minimum
and medium security patients on 359 "B-City" privilege trips
to museums, theaters, bowling alleys, arboretums, amusement
parks, and shopping. The Hospital also takes groups of
patients on trips--with a maximum ratio of one staff member
__________
12 The government does not dispute that section 4243(h) applies
only to Federal insanity acquittees committed after 1984, when the
Insanity Defense Reform Act, 18 U.S.C. ss 4241 et seq., was
enacted. See United States v. Crutchfield, 893 F.2d 376 (D.C. Cir.
1990).
for every five patients--four times per month. See id. &
nn.8-9. Yet the government has not previously objected to
any of these outings nor to the countless "B-City" passes
issued before 1996. In response to a query at oral argument
about whether the government would in the future seek to
invoke court jurisdiction over all "B-City" passes, govern-
ment counsel answered equivocally that there might be other
situations in which the government thought court intervention
would be necessary, based on concerns for public safety. But
it seems to us that Congress has already struck a balance in
the D.C. law between treatment for the criminally insane and
the public safety by defining the juncture where court ap-
proval is necessary as the point of a patient's "reentry into
society," not his stepping off Hospital grounds with a Hospital
escort. See also DeVeau, 483 A.2d at 311 (judicial review
under section 301(e) is to ensure that an acquittee "is well
enough to reenter the community on a conditional or uncondi-
tional basis"). In addition, tort law provides strong incentive
for the Hospital to make sure it is acting responsibly in
issuing "B-City" privileges. See White v. United States, 780
F.2d 97, 103 (D.C. Cir. 1986) (" 'One who takes charge of a
third person whom he knows or should know to be likely to
cause bodily harm to others if not controlled is under a duty
to exercise reasonable care to control the third person to
prevent him from doing such harm.' ") (quoting Restatement
(Second) of Torts s 319 (1965)). A "B-City" privilege, in
allowing the Hospital to monitor how the patient acts outside
the Hospital while keeping the public safety firmly in mind by
ensuring he is under Hospital control at all times, serves as a
crucial precursor to a patient's reentry into larger society.
Final NIMH Report, at 81 ("Therapeutic passes are [ ]
symbolic of a forensic hospital's legitimate mission to rehabili-
tate its patients, as well as provide the security necessary to
protect the public."); see also District of Columbia Dep't of
Human Serv., Policy and Procedure, CMHS Policy
50000.330.1 (superseding St. Elizabeths Hospital Policy no.
3300.1A) (directing the Hospital to classify, "for security
purposes, patients hospitalized pending or as a result of
criminal proceedings"). For the first time, in a case involving
perhaps the most notorious patient at the Hospital, the
government now argues 43 years after section 301(e)'s enact-
ment, that a "B-City" pass requires court approval. We do
not believe it has made its case.
Conclusion
We conclude that the Hospital's issuance of a "B-City" pass
to Hinckley does not require the approval of the district court
under section 301 because it is not a "conditional release
under supervision." A conditional release under section
301(e) is a release from the Hospital's restraint and guard,
and, as with all "B-City" passes, Hinckley will be guarded
and his movement restrained by the Hospital's escorts, as
well as by the limited nature of the outing. Accordingly, we
vacate the judgment of the district court barring access to
Hospital-approved "B-City" privileges in which he is accom-
panied by Hospital personnel.
So ordered.
Karen LeCraft Henderson, Circuit Judge, dissenting:
Section 24-301 of the District of Columbia Code (section
301) requires that someone like appellant John W. Hinckley,
Jr., who has been acquitted of a crime "solely on the ground
that he was insane at the time of its commission, ... shall be
committed to a hospital for the mentally ill until such time as
he is eligible for release." s 301(d)(1). Subsection (e) speci-
fies the circumstances under which a person so committed is
entitled to "release from the hospital," either conditionally or
unconditionally. A "conditional release" is authorized only on
the hospital superintendent's certification that the patient "is
in a condition to be conditionally released under supervision."
s 301(e) (emphasis added). The certification must be filed
with the court and served on the United States Attorney
fifteen days before the proposed release. The court must
then find "that the condition of such person warrants his
conditional release" and issue an order directing "release
under such conditions as the court shall see fit." s 301(e).1
The district court held that the off-premises trip proposed for
Hinckley--a six-hour visit with his parents and a friend at a
private house accompanied by staff from St. Elizabeths Hos-
pital (St. Elizabeths or Hospital)--is a conditional release
"sufficient to trigger the safeguards of judicial review pursu-
ant to 24 D.C. Code s 301(e)." United States v. Hinckley,
984 F. Supp. 35, 36 (D.D.C. 1997). Because the plain mean-
ing of section 301 supports the district court's conclusion, I
dissent from the majority's contrary holding.
The proposed visit with Hinckley's parents is plainly a
"release from the hospital." The word "release" has various
definitions, see XIII Oxford English Dictionary 558-59 (2d ed.
1989), but one of its primary contemporary meanings, and one
plainly applicable to confinement in a mental hospital, is "[t]o
set or make free, to liberate, deliver of (now rare) or from
pain, bondage obligation, etc," id. at 558 (definition 6.a) (italic
__________
1 An unconditional "release" is authorized when the Hospital
superintendent certifies and the court subsequently finds that a
patient "has recovered his sanity" and "will not in the reasonable
future be dangerous to himself or others." s 301(e).
original). It cannot be disputed that if Hinckley is allowed
the proposed visit he will be freed, liberated and delivered--
and therefore "released"--from the Hospital, albeit with the
stipulations that he return to the Hospital the same day and
that he be accompanied by Hospital staff during the visit.
These stipulations do not render the proposed trip any less a
"release"--they merely make the release "conditional" and
therefore subject to section 301(e)'s conditional release re-
gime set out above.
It is well established that a conditional release need not be
permanent or indefinite. In Hough v. United States, 271
F.2d 458 (D.C. Cir. 1959), the court specifically "read 'condi-
tional release' as used in the present statute to include [a]
kind of temporary freedom," notwithstanding that "the stat-
ute does not speak of temporary leaves from the hospital."
271 F.2d at 462. Further, the statute on its face provides
that conditional release be, as here, "under supervision." The
statute neither defines "supervision" nor distinguishes be-
tween supervision by Hospital staff and by someone else and
I see no reason to import such a distinction. Because the
statute "is silent as to the conditions of confinement or
treatment" and "provides no specific test whereby one can
determine whether rehabilitative therapy, which is clearly the
province of the hospital alone, amounts to conditional release,
which is the province of the court as well," "we must interpret
the general language used in light of the legislative purpose."
Id. The general policy underlying section 301 is "to provide
treatment and cure for the individual in a manner which
affords reasonable assurance for the public safety," id. at 461,
and the specific purpose of subsection (e) is to "to assure that
members of appellant's exceptionally dangerous class are
'kept under hospital restraint until the District Court, in the
exercise of a discretion, reviewable in this Court, approves a
relaxation of that restraint,' " United States v. Ecker, 543
F.2d 178, 186 (D.C. Cir. 1976) (quoting Hough, 271 F.2d at
462). This purpose is well served by requiring court approval
of attended as well as unattended trips by a member of the
"exceptionally dangerous class," based on the required deter-
mination "that the individual has recovered sufficiently so
that under the proposed conditions--or under conditions which
the statute empowers the court to impose 'as (it) shall see
fit,'--'such person will not in the reasonable future be danger-
ous to himself or others.' " Hough, 271 F.2d at 461 (quoting
s 301).2 The statute should therefore be interpreted to apply
here to Hinckley's proposed attended visit with his parents.
Apart from the statutory language and purpose, this court's
description of a section 301(e) "release" as a "relaxation" of
"hospital restraint," Ecker, 543 F.2d at 186; Hough, 271 F.2d
at 462, also manifests that the term encompasses attended
trips outside the hospital grounds. The "restraint" being
relaxed is that a person has been "committed to," that is,
"confined in" "a hospital for the mentally ill." s 301(d)(1),
(e). Any departure by a patient from the Hospital premises--
and consequent public exposure--is a "relaxation,"--i.e., a
"[p]artial (or complete) remission," XIII Oxford English Dic-
tionary 554 (2d ed. 1989) (definition 1.a)--of the restraint.
Each such departure therefore requires court approval under
section 301(e).
My reading of section 301(e)'s plain language to require
approval of any departure from the Hospital grounds com-
ports with the court's previous construction of the same
provision in United States v. Ecker, 543 F.2d 178, 187 (D.C.
Cir. 1976). In Ecker, the court rejected the patient's conten-
tion that judicial review of the Hospital's conditional release
decision should be under the same deferential standard "sug-
gested" in Tribby v. Cameron, 379 F.2d 104 (D.C. Cir. 1967),
for reviewing the adequacy of a patient's in-hospital treat-
ment.3 The Ecker court expressly based its rejection of the
__________
2 It makes no difference that an attended release may be thera-
peutic or a necessary precursor to broader liberty, as the majority
seems to suggest, Majority Op. at 19-20. This is clear from Hough.
See 271 F.2d at 462 ("We readily grant that periodic freedom may
be valuable therapy.... We do not, of course, lose sight of the
hospital's view that such temporary freedom is often an essential
part of the therapeutic process....").
3 The Tribby court stated:
Tribby standard on the distinction between decisions that
affect whether a patient is to leave the hospital premises and
those that do not:
The narrow standard of review described in Tribby only
applies when public safety is not a factor; it has no
applicability in release proceedings (conditional or uncondi-
tional) under section 301(e). To anticipate a bit what may
be distilled from our decisions in this field, which we
discuss below, the agency analogy is only pertinent within
the hospital grounds. In that area we and the district
court may give a degree of deference to the hospital's
judgment equivalent to the deference we accord agency
action; when, and if, the patient is to cross the hospital
boundary, then other factors affecting the public come into
play, and both the statute and our decisions impose a
different role and far heavier responsibilities on the courts.
543 F.2d at 183 (footnote omitted; emphasis added).4 The
Ecker court then held that the Hospital's decision to seek
conditional release--which permits a patient to "cross the
hospital boundary"--is subject to de novo judicial review.
__________
We do not suggest that the court should or can decide what
particular treatment this patient requires. The court's function
here resembles ours when we review agency action. We do not
decide whether the agency has made the best decision, but only
make sure that it has made a permissible and reasonable
decision in view of the relevant information and within a broad
range of discretion.
379 F.2d at 328.
4 The Ecker court noted that in Covington v. Harris, 419 F.2d 617
(D.C. Cir. 1969) (en banc), "this court faced another situation where
a district court was asked to review a medical judgment affecting
only the internal administration of Saint Elizabeths Hospital" when
a patient "through a writ of habeas corpus sought transfer to a less
restrictive ward of the hospital." 543 F.2d at 183 n.11. The Ecker
court explained that "[s]ince public safety is not a significant
consideration where a patient seeks transfer to another ward within
the hospital, the [Covington] court applied the standard of limited
review announced in Tribby." Id. (citing Covington, 419 F.2d at
621) (emphasis added).
See 543 F.2d at 183-88. Likewise here the Hospital sought to
allow Hinckley to "cross the hospital boundary," thereby
implicating public safety, and the same inquiry and standard
apply.
My interpretation of the statute is also consistent with the
court's discussion in Hough of what constitutes a "conditional
release," as is manifest from the discussion above, see supra
pp. 2-3, and with the Hough court's specific holding as well.
In resolving one of the two appeals before it, the Hough court
read the term " 'conditional release' as used in the present
statute to include the kind of temporary freedom which has
been given [Hough]," namely for her " 'to leave Saint Eliza-
beths Hospital to go to the city of Washington, D.C., unac-
companied in an effort to obtain employment.' " 271 F.2d at
459 (quoting the Hospital Superintendent's recommendation).
There is nothing in the Hough decision that would exclude
from the ambit of "conditional release" the kind of temporary
(albeit less extensive) freedom the Hospital seeks for Hinck-
ley.
For the preceding reasons I would affirm the district
court's holding that the Hospital's proposal to release Hinck-
ley from its confines is a "conditional release" subject to
judicial review under the plain meaning of section 301(e)--
without resort to inapplicable legislative history5 or the irrele-
__________
5 The snippet of history the majority quotes for the proposition
that the Congress intended public safety to be safeguarded only
upon an inmate's "reentry into society" is addressed not to condi-
tional release but to unconditional release which requires a finding
that the patient "has recovered his sanity," s 2434-301(e). Com-
pare Majority Op. at 17 (quoting 1995 House Report, at 13: "It is
the opinion of the Committee [ ] that once a person has been
excused from his criminal act or acts by reason of insanity he not
thereafter be released into society until it is reasonably certain that
the person has recovered his sanity and is no longer dangerous to
himself or others.") (emphasis added) with Ecker, 543 F.2d at 184
n.14 ("The legislative distinction between conditional and uncondi-
tional releases ... is that only unconditional releases require a
showing that the patient has recovered his sanity."). Nevertheless,
vant past practice of St. Elizabeths.6 Of course, "calling it a
conditional release does not prevent it. It simply requires
the hospital authorities, when they decide that a patient has
reached the stage where such freedom is necessary and
proper, to certify that fact to the District Court and obtain an
appropriate order, reviewable by this Court." Hough, 271
F.2d at 462. The district court then must "fulfill its statutory
role by deciding whether or not the evidence supports the
hospital's determination that in all reasonable likelihood the
patient's temporary absence from the hospital under specified
conditions will not endanger others." Id. The court below
did just that and concluded: "With the record as it is, the
Court cannot find by a preponderance of the evidence that
__________
the visit proposed for Hinckley does involve a reentry into society,
however brief or encumbered.
6 I do not see any relevance in St. Elizabeths's past practice,
which the majority discusses at some length. See Majority Op. at
18-20. We cannot possibly owe deference to the Hospital in
determining the reach of " 'the statute's grant of judicial power to
protect the public safety.' " Ecker, 543 F.2d at 184 (quoting Hough
271 F.2d at 461). That the Hospital has long and often permitted
attended off-premises trips through " 'B-City' passes" shows only
that the Hospital did not think to notify the court and the United
States Attorney, pursuant to section 301(e), of impending releases.
I find it telling in any event that the Hospital made no attempt to
defend its longstanding practice or to protect its interests in any
way in this appeal until we sua sponte requested it to submit an
amicus curiae brief. See United States v. Hinckley, No. 97-3183
(filed Oct. 27, 1998) (ordering "that the District of Columbia, as
operator of St. Elizabeths Hospital, is directed to file an amicus
curiae brief" to include "an explanation of the frequency and type of
off-ground visits that the hospital has been allowing without resort
to the procedure set forth in s 301"). In fact, it does not appear
that the Hospital ever expressed any dissatisfaction with, much less
objection to, the 1987 agreement between Hinckley and the United
States Attorney requiring notice and court approval of any depar-
ture by Hinckley from the Hospital grounds. If requiring judicial
approval of attended off-premises patient trips will in fact impose
the "significant burden" the Hospital predicts, see Amicus Curiae
Mr. Hinckley will not be a danger to himself or others should
he be permitted to cross the boundary of St. Elizabeths
Hospital under the proposal before the Court, even in the
company of Hospital staff." 984 F. Supp. at 37. The court's
finding was not clearly erroneous and should therefore be
affirmed. See Ecker, 543 F.2d at 188 ("At our level the
standard of review is well settled: The trial court's '(f)indings
of fact shall not be set aside unless clearly erroneous.' ")
(quoting Fed. R. Civ. P. 52(a)).
The district court based its finding here on the record that
"was established in June of 1997," 984 F. Supp. at 37, when
the court had issued an order and memorandum opinion
denying Hinckley conditional release for monthly 12-hour
unsupervised visits with his parents. United States v. Hinck-
ley, 967 F. Supp. 557 (D.D.C. 1997) (Hinckley I). The district
court found in Hinckley I that Hinckley
(1) was then diagnosed with "psychotic disorder not
otherwise specified, in remission; major depression, in
remission; and, narcissistic personality disorder," diag-
noses on which each side's experts substantially agreed;
(2) "has a history of deception and a record of screen-
ing information he is otherwise obligated to provide to
treating and examining clinicians," based both on Hinck-
ley's stipulation to having deceived and manipulated
those treating him from the time of his commitment in
1982 through the end of the decade7 and on his more
__________
Brief at 3, the Hospital would have moved much sooner to protect
its interests.
7 The court found particularly "disturbing" the following journal
entry Hinckley made in 1987 when he had already been in treat-
ment at St. Elizabeths for five years and had, as now, "convinced
his treatment clinicians that he had recovered sufficiently for condi-
tional release":
I dare say that not one psychiatrist who has analyzed me
knows any more about me than the average person on the
street who has read about me in the newspapers. Psychiatry
is a guessing game and I do my best to keep the fools guessing
about me. They will never know the true John Hinckley.
Only I fully understand myself.
967 F. Supp. at 562 (record citation omitted).
recent concealment from them of his stalking of Com-
mander Jeanette Wick, the Hospital's Chief Pharmacist,
and of his plan for a possible television interview;8
(3) "[a]s recently as March 1995-March 1996" "en-
gaged in conduct with the Chief Pharmacist at the Hospi-
tal, Jeanette Wick, that has disturbing parallels to the
conduct leading up to the shooting of President Reagan
including the stalking of President Carter and Jodie
Foster";9
(4) had "made progress," as psychological testing re-
sults showed, but "continues to be 'very defensive and
represses a lot of his feelings.' "
967 F. Supp. at 561-62 (record citations omitted). Based on
its factual findings and on the opinion of the government's
expert witness, Dr. Raymond F. Patterson, the district court
concluded that Hinckley's history of deception made the
accuracy of favorable diagnoses suspect and raised the likeli-
hood of an unpredictable "relapse," like the one in the "Wick
Incident," posing a potential danger during the proposed off-
premises visits with his parents. Id. at 562-63. Accordingly,
the court concluded that Hinckley "failed to meet his burden
that he will not be a danger to himself or others should he be
permitted monthly twelve-hour unescorted visits with his
__________
8 According to the court Wick testified that sometime in 1995
Hinckley "asked her advice on whether she thought he should be
interviewed by Barbara Walters." 967 F. Supp. at 559 (record
citation omitted).
9 The court found specifically:
These parallels include continued pursuit of a personal relation-
ship with Cmdr. Wick even after it became clear that she was
not interested, making unannounced visits to her office when
told not to do so by her, making numerous telephone calls and,
on some occasions, identifying himself only when Cmdr. Wick
answered the phone, gathering information about her after-
hours personal schedule, recording love songs for her and using
the pet name of her daughter in one of the songs, and staring
at her in a menacing fashion more than eight months after he
was told to avoid her by Hospital Staff.
967 F. Supp. at 562.
parents off Hospital grounds" and that "[t]he severity of [his]
criminal conduct, and his conduct at the Hospital since his
admission in 1982, as well as his current behavior, all militate
against the conditional release he seeks." Id. at 563. The
evidence the district court cited not only supported but
compelled its assessment of the danger Hinckley posed. Any
other conclusion would have invited reversal for clear error.
Here the district court similarly concluded that the record
as of June 1997, when Hinckley I issued, "showed that John
Hinckley, Jr. is a dangerous individual with a history of
deception" and that "Hinckley's criminal conduct and his
conduct at the Hospital since his admission in 1982 militate
against conditional release." 984 F. Supp. at 37. Most
significantly, the court noted that "none of the parties here
dispute that Mr. Hinckley's condition remains unchanged
since June of 1997" ("[e]xcept for 'mild disappointment' at the
news that his request for conditional release was denied").
Id. at 37 & n.3 (emphasis added; record citation omitted).
On appeal from Hinckley I, in which the appellant did not
challenge the substance of the court's findings and conclu-
sions,10 we found the district court's review of the record
without fault, see United States v. Hinckley, 140 F.3d 277
(D.C. Cir. 1998), and I can only conclude, given Hinckley's
history of deception, intimidation and violence and the uncer-
tainty of his current mental state, that there was no clear
error in the district court's conclusion here that it could not
make the necessary "affirmative finding that it is at least
more probable than not that he will not be violently danger-
ous in the future." Ecker, 543 F.2d at 188. The proposal
here differs from Hinckley I in only two respects: the off-
premises visit is limited to six (rather than twelve) hours and
Hinckley must be attended by a Hospital staff technician and,
__________
10 His failure to challenge the court's determinations in the previ-
ous appeal may preclude his doing so now. See Laffey v. Northwest
Airlines, Inc., 740 F.2d 1071, 1076 (D.C. Cir. 1984) (refusing to
revisit issues decided in earlier appeals, "hold[ing] that 'the strong
policy of repose,' precludes consideration of ... earlier rehearsed
arguments and more recent afterthoughts") (quoting Laffey v.
Northwest Airlines, Inc., 642 F.2d 578, 585 (D.C. Cir. 1980)).
en route, by a driver. The district court "considered the
details of this plan carefully, but c[ould] not agree that even
these safeguards are enough given the existing record in this
case." 984 F. Supp. at 37. This fact-based conclusion is
supported by the same evidence the court cited in Hinckley I.
Finally, I point out that even were the majority correct
(which it is not) in holding that the proposed trip is not a
section 301 "conditional release" requiring judicial approval,
the proper disposition would be to remand to the district
court for a determination under the Tribby standard (pro-
posed below by Hinckley, 984 F. Supp. at 36) whether the
Hospital, in concluding that Hinckley can leave the Hospital
grounds without risk to the public, "has made a permissible
and reasonable decision in view of the relevant information
and within a broad range of discretion." 379 F.2d at 328.11
Given Hinckley's long, undisputed history of mental illness,
deception12 and violence, I believe the district court can
unquestionably conclude that the Hospital has not satisfied
this standard.
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11 I remain at a loss to understand how we can leave the public
safety decision to the Hospital, which the Tribby standard does,
when the Congress so unequivocally assigned it to the court.
12 If Hinckley could successfully (and significantly) deceive his
treatment team, as was established in Hinckley I, those individuals'
formulation of any decision based on Hinckley's behavior or reac-
tions must be viewed with caution.